Second Department Vacates Trial Court Order Requiring Removal of Trespassing Structure: Will Money Damages Compensate the Trespassed Upon Party?

On January 24, 2018 the Appellate Division, Second Department affirmed in part, and reversed in part, a trial court order granting Defendant, Bay Ridge Methodist’s counterclaim that certain cladding and a drip edge (a system used to deflect water) installed by the Plaintiff, David S. Kimball, along a party wall shared by the parties constituted a trespass. See, Kimball v. Bay Ridge United Methodist Church, 2017-03575, Jan. 24, 2018.

In upholding the trespass, the Court stated that Kimball “failed to raise a triable issue of fact regarding whether the cladding and drip edge encroached onto the [Church’s} property.” As such, the trial court’s trespass finding against Kimball, in favor of the Church, was upheld. However, the trial court’s finding that the trespass must be removed was reversed.

In reversing, the Court stated that “RPAPL 871(1) provides that an ‘action may be maintained by the owner of any legal estate in land for an injunction directing the removal of a structure encroaching on such land. Nothing herein contained shall be construed as limiting the power of the court in such an action to award damages in an appropriate case in lieu of an injunction or to render such other judgments as the facts may justify.'” (emphasis added)

Finding that the Church failed to demonstrate the absence of any triable issues of fact concerning whether the balance of equities weighed in its favor, the Appellate Division vacated the injunction directing Kimball to remove the cladding and drip edge from the shared wall holding that “[i]n order to obtain injunctive relief pursuant to RPAPL 871(1), a party is ‘required to demonstrate not only the existence of [an] encroachment, but that the benefit to be gained by compelling its removal would outweigh the harm that world result.”

Consequently, since the Church did not prove that the benefit gained by the Church in compelling Kimball to remove the cladding and drip edge would outweigh the harm that would result to Kimball if removed, the Court remitted the matter back to the Supreme Court, Kings County for further proceedings.

Under RPAPL 871(1), and upon the trespass finding, the party trespassed upon became the party with the burden to prove that the benefit of removal of the trespass outweighed the harm to the trespassing party. It is not enough for injunctive relief that a trespass exists. The trespassed upon party is tasked with the burden to prove that its damages outweigh those damages that the trespassing party may incur upon removal.

It is interesting to note that, RPAPL 871(2) specifically states that “[t]his section shall not be deemed to repeal or modify any existing statute or local law relating to encroaching structures.” It would be interesting to know whether a common law trespass claim was asserted in this action, or whether another statute or local law was available that could have resulted in a different and more favorable outcome for the Church.